Canadian Journal of Family Law

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The influence of disability studies on legal scholarship is most visible in the social model, which claims that people are not disabled because of their bodily impairments, but by society in its refusal to accommodate their impairments.

However, a modest but growing discourse within disability studies argues that the notion of impairment, in addition to disability, is socially constructed. This article aims to bring this problematized conception of impairment, informed by Michel Foucault’s conception of power, into contact with legal scholarship. Judith Mosoff’s sensibility about the role of impairments in the legal treatment of disabled people illustrates this critical outlook, which has the potential to guide scholarship and legal reforms. For instance, in the context of family law, those reforms could affect the evaluation of a person’s fitness to parent or her right to childcare support.

The first part of this article makes a prima facie case for a critical ontology of impairment and the second part provides theoretical foundations for such a practice. I use Supreme Court of Canada case law to illustrate how impairments are typically naturalized and to begin challenging impairment-based identities and detaching disability from impairment.